Employment Law Daily Supervisor’s heterosexuality wouldn’t bar jury from finding she sexually desired female subordinate
Wednesday, August 23, 2017

Supervisor’s heterosexuality wouldn’t bar jury from finding she sexually desired female subordinate

By Lorene D. Park, J.D.

Denying summary judgment against a Title VII sexual harassment claim by a bus dispatcher who was allegedly subjected to sexual comments and touching by her female supervisor, a federal district court in Illinois explained that even though the supervisor attested that she is heterosexual and married to a male, a jury could find that her remarks about having sex with a woman and repeated touching of her subordinate’s breasts and crotch were motivated by sexual desire. It could also find the conduct was sufficiently offensive and severe or pervasive enough to create a hostile work environment. The employee’s retaliation claim also advanced based on evidence that she was fired within four months of her EEOC charge, under circumstances that were unusual with respect to the employer’s disciplinary process (Watkins v. Illinois Central School Bus, LLC, August 16, 2017, Dow, R., Jr.).

Inappropriate interactions. The employee was a bus dispatcher for a company that provides transportation services to schools. Between September 2011 and May 2012, she was allegedly subjected to inappropriate behavior by a supervisor who: commented on the employee’s breasts and rubbed up against them; grabbed her crotch on “several occasions” and asked if she wanted to play with the supervisor’s genitalia; frequently leaned her breasts on the employee’s back; said she wanted a woman to “impregnate” her; and asked the employee twice, “What’s wrong with being with a woman?” Some of this was witnessed by coworkers, including another supervisor.

The parties highlighted three incidents. In October 2011, the supervisor rubbed her thumb on the employee’s nipples to check “hardness” and said she looked cold. In February 2012, the supervisor called the employee to her office and asked if she wanted to see a hole in the supervisor’s breast. The employee said no and left. In April, the supervisor “purposefully grabbed” the employee’s breasts “for approximately 5 seconds to see if they were heavier” than the supervisor’s. Coworkers testified that the employee was “groped” and “was in shock.”

Based on these incidents, the employee believed the supervisor wanted to have sex with her, and coworkers thought the supervisor was gay; but the supervisor later attested: “I am a heterosexual female. I have been married to my male husband . . . [and w]e have two children.”

Termination. It is undisputed that after the employee’s internal complaint in May 2012, the alleged sexual harassment stopped. However, the employee was terminated in October 2012, four months after she filed an EEOC charge. She had received several complaints and write-ups—including several that predated the alleged harassment—for failing to provide safety harnesses to special needs kids, failing to ensure a bus went to the correct terminal, mixing up bus instructions, and other incidents. According to her, the supervisor arranged meetings with at least five of her coworkers, who then over a two-day period lodged complaints about the employee (some from incidents occurring months earlier). The supervisor’s meetings were unusual for the office, and she didn’t follow the usual practice of investigating before citing the incidents in an email recommending the employee’s termination. The employee was fired on October 17 without being given the complaints or a chance to contest them.

Behavior offensive enough. Denying summary judgment on the employee’s Title VII sexual harassment claim, the court found many of the employer’s arguments “difficult to fathom.” While the employer asserted that the supervisor’s conduct not sufficiently offensive because there was nothing “demeaning” about it, the court took the opposite view, particularly with respect to the supervisor’s grabbing the employee’s crotch, grabbing her breasts to “weigh” them, and flicking her nipples—in front of coworkers and without consent. Arguing that no reasonable jury would find this conduct offensive was “far off the mark,” said the court.

Jury could find sexual desire. Nor was the employer successful in arguing that the employee could not show the conduct was “motivated by sexual desire” because the supervisor is not homosexual. First, the Supreme Court has held that harassing conduct need not be motivated by sexual desire to raise an inference of discrimination on the basis of sex. Second, there was ample evidence that the supervisor wanted a sexual relationship with the employee. This included evidence that she repeatedly touched the employee’s breasts and asked the employee if she wanted to see the supervisor’s breasts and if she wanted to play with her genitalia. She also raised the prospect of “being with a woman.” The employee and coworkers interpreted this to mean the supervisor wanted a sexual relationship with the employee, and a jury could find sexual attraction as well, the court concluded.

Severe and pervasive. Also rejected was the employer’s argument that the alleged conduct wasn’t sufficiently severe or pervasive. Most problematic was the employer’s position that there were only four discrete incidents, when the record indicated otherwise. Indeed, there was testimony that some of the incidents, including grabbing the employee’s crotch and touching her breasts, happened on many more occasions, and a jury could conclude the repeated solicitations and unwanted touching of intimate body parts over an eight-month period was severe or pervasive enough to create a hostile work environment.

Retaliation claim also advances. Summary judgment was also denied on the employee’s retaliation claim. While the employer argued that complaining of mere “workplace banter” could not be protected activity, the court found a genuine dispute on the sexual harassment claim. Even if the employee did not succeed on that claim, a jury could find sincere and objectively reasonable her belief that the supervisor’s conduct was prohibited by Title VII. There was also a triable question of fact on causation, considering the employee was fired within four months of filing her EEOC charge, the supervisor knew about her complaints, and the way in which the supervisor collected complaints to support the termination was “highly unusual.”

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